TBA Criminal Justice Section August 2002 Newsletter

NEWSLETTER CONTENTS

- Letter from Chair

- 2002 - 2003 Executive Council

- Editorial Column by Torry Johnson

- Legislative Summary by Jeff Henry

- Section Meeting

- CLE Survey

Included in this issue of the TBA Criminal Justice Section newsletter is a re-printing of an editorial column authored by Torry Johnson, District Attorney General for the 20th Judicial District. The column was originally published in the June 27, 2002 edition of the Tennessean newspaper and General Johnson has given his permission that it be re-printed here. Torry’s letter is an extremely well reasoned discussion of several of the significant criminal justice issues that the state legislature appeared to be failing to recognize or address in the closing days of the legislative session.

As matters developed, the Legislature did eventually adopt a budget for fiscal year 2003. However, the issues identified in Torry’s letter remain significant and they continue to be largely unaddressed in the legislative budget process. While the Legislature’s annual budget process will probably continue to be controversial and difficult, I believe that Torry’s column correctly asserts that if the Legislature fails to adequately address the need for significant increases in the funding for courts, prosecutors and defense counsel, both public defenders and appointed private counsel, then government will have shirked its responsibility to the citizens of Tennessee. It is therefore incumbent upon the members of the Criminal Justice Section to exert whatever influence we have individually, or as members of the Tennessee Bar Association, to focus the attention of the individual members of the Legislature on these issues.
Ross Alderman
Criminal Justice Section Chair

2002 - 2003 TBA Criminal Justice Section Executive Council

Ross Alderman, Chair
Metro Public Defender, Nashville
rossalderman@jis.nashville.org

James N. Ramsey, Vice Chair
District Attorney General, Clinton
jramsey@usit.net

Comer Donnell, Immediate Past Chair
District Public Defender, Lebanon
cldonnell@aol.com

Pat McNally
Hollins, Wagster & Yarbrough, Nashville
pmcnally@hwylaw.com

David M.Eldridge
Ritchie, Fels & Dillard PC, Knoxville
eldridge@rfdlaw.com

Paula Voss
Federal Defender Services of Eastern TN, Knoxville
Paula_Voss@fd.org

Mark Donahoe
Byrd & Donahoe, Jackson
mdonahoe@bdbfirm.com

Claudia S. Jack
District Public Defender, Columbia
tdjack@djis.net

Roger Nell
District Public Defender, Clarksville
rnell@clarksville.com

William T. Ramsey
Neal & Harwell PLC
ramseywt@nealharwell.com

John W. Galloway, Jr.
District Attorney General, Jamestown
dag8dist@tndagc.com

Jeffrey S. Henry
District Public Defender Conference, Nashville
jeffrey.henry@state.tn.us

The following article is a reprint from the Thursday, 06/27/02 Tennessean Newspaper

Public protection from crime at risk in budget

By TORRY JOHNSON

As the end of the state's fiscal year looms, the General Assembly appears to be no closer to a responsible resolution of the critical financial problems that confront this state. Lost in the rhetoric is an understanding of how public safety is affected by the crisis precipitated by four years of inaction.

There is no more important purpose of government than to provide for the protection of its citizens. In Tennessee, county sheriffs and city police departments are primarily responsible for enforcing the criminal law. However, once an arrest has been made, the state is responsible for providing the courts and the correctional system that are necessary to adjudicate and to punish people charged with serious crimes.

Although only accounting for approximately 3% of the total state budget, the judicial system has not been immune from requests to slash budgets and to forego new spending. As a result, Tennessee is poised to take a giant step backward in public safety and to relinquish the hard-fought gains made by victims, law enforcement and prosecutors over the last two decades. As someone who has been working in the system during this time, I am frustrated with the indecision and dismayed at the potential consequences.

Crime victims in Tennessee have gradually secured both well-deserved rights and financial compensation for losses or injuries, but anticipated cuts will undermine this progress. In 1976, the legislature created the Criminal Injuries Compensation Fund for victims of violent crime to help defray the costs of medical bills and funeral expenses. Now, the state intends to seize this fund to apply it to this year's budget shortfall.

Just two years ago, with great fanfare, the state adopted the Victims' Rights Amendment, and the legislature enacted numerous statutes designed to provide victims with certain rights within the criminal justice system. These responsibilities were added to the list of duties handled by the overworked victim-witness coordinators in each district. Now the coordinators themselves could be eliminated altogether, leaving the victims without assistance.

Five years ago, the legislature ordered a study to determine the staffing needs of the courts, the district attorneys and the public defenders. An analysis was done, and the legislature was advised that there were serious personnel needs, particularly by the district attorneys and public defenders. However, in the years that have passed, no prosecutors or public defenders have been added and both groups are being asked to cut their already inadequate resources still further.

In Nashville, the city has steadily added police officers, and a recent audit proposes shifting even more officers to the streets. In the first six months of 2002, the police department, with its increased staffing, has arrested 1,200 people more than during the same six-month period of last year.

Unfortunately, these arrests are entering the most overloaded court system in the state. For several years, Nashville has been at the top of the list to receive another criminal court, but the state cannot afford it. Add to that an insufficient number of prosecutors and defense attorneys, and you have a system where justice is denied to both the victim and the accused.

Because of the hard work of the judges and Metro's support for both the district attorney's office and the public defender's office, the system operates remarkably well, but, serious problems are on the horizon. Without a fifth criminal court and if budget cuts eliminate prosecutors, our local criminal justice system will not be able to keep pace with the burgeoning arrest rate.

While the gaping budget deficit can wreak havoc on existing services, the lack of adequate funding going forward means that sound legislative proposals cannot be enacted either.

Senseless gun violence plagues the state in both urban and rural communities. A law enforcement coalition of police, sheriffs and prosecutors has proposed several bills designed to make communities safer. The Metro Police Department confiscates more than 2,000 firearms on an annual basis, but current state laws are too anemic to be of much use.

To remedy this problem, the Tennessee Public Safety Coalition proposed a sweeping overhaul of the state's gun laws to provide meaningful sanctions to those arrested for carrying firearms illegally. Other states have enacted similar legislation and experienced dramatic drops in their rates of homicide and serious assaults by firearms. But this measure was dead on arrival at the General Assembly because it carried a $24 million dollar price tag.
I do not believe the people of this state want to surrender the progress that has been made in criminal justice. To the contrary, I think Tennesseans want to press the attack on violent crime while treating victims with respect and ensuring that the judicial system and corrections have the resources to do their jobs effectively. If the legislature fails in this regard, government will have shirked its responsibility to protect its citizens.

Torry Johnson is district attorney general for Davidson County.

Criminal justice legislative summary
of the 2002 Session of the 102nd General Assembly

By Jeffrey S. Henry,
Director of Research & Training, Tennessee
District Public Defenders Conference

As of this writing 392 Bills passed by the Legislature have become law as Public Chapters 466 – 857 of the 102nd General Assembly of the State of Tennessee. Of particular interest is the change in jury sequestration rules (Public Chapter No. 741), the Terrorism Act that includes the "Investagatory Subpoena" (Public Chapter No. 849) and changes in the DUI/DWI laws (Public Chapter No. 855). The complete text of all of the Public Chapters referenced in this summary may be obtained on the Tennessee General Assembly website: www.legislature.state.tn.us, under Chaptered Bills.

Public Chapter No. 469 "Tennessee College & University Campus Sex Crimes Prevention Act of 2002"

Requires sex offender registration to include each higher education institution at which the offender is enrolled as a student, becomes a volunteer or is employed. Sex offender must complete or update a TBI sexual offender registration /monitoring form within 10 days of the occurrence of any of the three events. EFFECTIVE: October 27, 2002.

Public Chapter No. 494 Criminal History Records Check for Credentialed Court Reporters

Persons seeking to become credentialed court reporters pursuant to Tennessee Supreme Court Rules 41 & 42 shall supply a fingerprint sample and submit to a criminal history records check by TBI. The "why" of this act may be from the Court of Criminal Appeals opinion in State v. Millsaps, 30 S.W.3d 364 (Tenn. Crim. App. 2000) concerning the impeachment of an interpreter because of a prior criminal conviction pursuant to Tenn.R.Evid. 609. EFFECTVE: March 19, 2002.

Public Chapter No. 495 No Expunction for Conviction Reversed on Appeal

Amends TCA § 40-32-101. Fact that conviction has been reversed on appeal does not require removal and destruction of public records. "Public records" for purposes of expunction only does not include appellate court records or appellate court opinions. EFFECTIVE: March 19, 2002.

Public Chapter No. 546 Restricted Driver License

Amends TCA § 55-10-403 and § 55-50-502 to allow the issuance of a restricted driver license if the person does not have a prior conviction for violation of § 39-13-213 (a)(2) – vehicular homicide as a result of intoxication, § 39-13-218 – aggravated vehicular homicide or § 39-13-106 – vehicular assault at any time or a violation of § 55-10-401 – driving under the influence or §55-1-418 – adult driving while impaired within ten (10) years of the present violation. BECAME LAW WITHOUT GOVERNOR’S SIGNATURE: April 2, 2002

Public Chapter No. 621 "Educational Records as Evidence Act"

School, when not a party or place where cause of action is alleged to have arisen, may comply with a subpoena duces tecum by personal delivery or by certified or registered mail, filing with the court clerk or the officer, body or tribunal conducting the hearing, a true and correct copy of the records described in the subpoena. A party intending to use the provisions of the Act shall furnish the adverse party a copy of the subpoena decus tecum not less than 10 days prior to the hearing of the matter for which the records may be subpoenaed. EFFECTIVE: April 17, 2002.

Public Chapter No. 622 Theft of Stone Walls

Allows a warning to be posted along the right-of-way of state or local roadway located in proximity to a rock or stone wall that removal of any portion of a stone or rock wall without consent of the owner constitutes the crime of theft. EFFECTIVE; April 17, 2002

Public Chapter No. 628 Work Release

Amends TCA § 41-2-128 to allow judge of circuit or criminal court as well as general sessions court to order a misdemeanant sentenced to county jail or workhouse be placed on work release. EFFECTIVE: April 17, 2002

Public Chapter No. 649 Punishment for Certain Assaults

Amends TCA §§ 39-13-101, 102, and 111 in the case of an assault upon a victim as defined by TCA § 36-3-601(8) to allow the court, if the defendant has the ability to pay, to impose a fine in an amount
not in excess of $200, such fine to be transferred to the general fund of the state to be used for the funding of family violence shelters and shelter services. EFFECTIVE: July 1, 2002.

Public Chapter No. 702 Subpoena Power for TennCare Investigations

Allows the Office of Health Services, Program Integrity Unit, when conducting any investigation relating to a TennCare enrollee/recipient to issue subpoenas and compel attendance of witnesses and the production of books, accounts, papers, documents and testimony. EFFECTIVE: May 1, 2002

Public Chapter No. 732 Driving Record as Evidence

Makes driver record maintained by Department of Safety prima facie
evidence of defendant’s prior conviction(s) in prosecution for
subsequent offense of driving on suspended, revoked or cancelled
driver license unless written motion is made alleging and specifying
the error(s). Defendant to be given copy of the department of safety
printout at arraignment or if the charge is by warrant, at defendant’s
first appearance in court or at least 14 days prior to a trial on the
merits. EFFECTIVE: July 1, 2002.

Public Chapter No. 741 Sequestration of Juries

This Act creates a significant change in criminal trial procedure. Except in those criminal prosecutions in which a death sentence may be rendered, jurors shall be sequestered at the sound discretion of the trial judge. EFFECTIVE: May 8, 2002.

Public Chapter No. 749 Solicitation of a Minor

Adds offense of solicitation of a minor to the definition of "sexual offenses" for the purposes of "Sexual Offender Registration and Monitoring Act". EFFECTIVE: July 1, 2002.

Public Chapter No. 849 Terrorism Prevention and Response Act of 2002

To fully appreciate the potential impact of this act you need to go to the website and read it for yourself. It amends 47 Titles of the Tennessee Code. "Act of Terrorism" is defined as:

S an act or acts constituting a violation of this part, any other offense under the laws of Tennessee, or an act or acts constituting an offense in any other jurisdiction within or outside of the territorial boundaries of the United States that contains all of the elements constituting a violation of this part or is otherwise an offense under the laws of such jurisdiction, that is intended, directly or indirectly, to:

(1) Intimidate or coerce a civilian population; (2) Influence the policy of a unit of government by intimidation or coercion; or (3) Affect the conduct of a unit of government by murder, assass- ination, torture, kidnapping, or mass destruction.

This definition should start the reader’s thought processes. Under the act it is a Class A felony to commit an act of terrorism; a Class B felony to possess, develop, manufacture, produce, transfer, acquire, weaponize, or retain any weaponized agent, biological warfare agent, weaponized biological or biologic warfare agent, chemical warfare agent, nuclear or radiological agent, or any other weapon of mass destruction. It is also a Class B felony to provide material support or resources to a person known to be planning or carrying out an act of terrorism or attempting to so do. Computer offences are created and penalties for possession, manufacture, transport, repair or sale of explosives or explosive weapons are enhanced.

Last but not least, the act provides for the issuance of an "Investigatory Subpoena". A subpoena may be requested by a law enforcement officer for the purpose of establishing, investigating or gathering evidence for the prosecution of a criminal offense. There is nothing in the act that limits the request to acts of terrorism. The subpoena is requested by submitting an affidavit to a judge. If the subpoena is issued, the affidavit is kept under seal by the judge until a copy is requested by the DA, criminal charges are filed or the affidavit is ordered released by a court of record for good cause. Protection from the "Investigatory Subpoena" is afforded only after criminal charges have been commenced as a subpoena for documentary evidence is not to be directed to or served on a defendant or counsel to a criminal action in this state. This act was effective July 4, 2002.

Public Chapter No. 855 .08 DUI & Repeal of Adult Driving While Impaired

Blood alcohol content required to commit the offence of DUI is decreased from .10 to .08 effective July 1, 2003. While a previous version of the bill limited the reduction to take effect only if the reduction was still federally mandated, the bill as enacted does not contain such limitation. The offense of adult driving while impaired is repealed effective July 1, 2003 but prior convictions for adult DWI may be used to determine eligibility for restricted license or enhancement for a subsequent DUI, determining the revocation period for failure to submit to a BAC test, and determination of habitual offender status. Effective October 1, 2002 a person convicted of DUI that has a prior DUI within past five (5) years cannot operate a vehicle after the revocation period without a functioning ignition interlock device. An exception is made for a vehicle owned or provided by an employer if the court so orders and the employer is made aware of the restriction.

HB2885/SB2932 Exposure To Methamphetamine Lab Constituting "Severe Child Abuse"

"Severe child abuse" under TCA § 37-1-102 redefined to include knowing exposure of child to, or knowing failure to protect child from, exposure to methamphetamine lab. Passed by both House and Senate, sent to Governor for action on July 8, 2002. Act will be effective upon Governor’s signature.

Public Chapter 842 FY 2002-2003 Revenue Act

This summary would not be complete without mention of the Revenue Bill aka Cooper Bill and the following appropriations act. The Revenue Bill was passed by the Legislature late Wednesday evening, July 3rd and signed by the Governor on July 4, 2002. While raising various taxes and tax rates, the act also doubled the occupational privilege tax (TCA § 67-4-1703), but exempted full–time state employees from payment of the tax.

Public Chapter 842 Appropriations Act

This Act allocated state funds for the purpose of defraying the expenses of the state government. It too was passed by the Legislature late in the evening on July 3rd and signed by the Governor on July 4, 2002.

Once again, this is just a summary. The reader is encouraged to use the Tennessee General Assembly website and review the particular act.

Criminal Justice Section Meeting
The TBA Criminal Justice Section Executive Council will meet on Friday, August 30, 2002 at 12:00 p.m. Central Time at the Tennessee Bar Center, 221 Fourth Avenue North, 2nd Floor, Nashville. All members are invited to attend; however, this is a lunch meeting, so you must contact Lynn Pointer at TBA so that lunch will be purchased on your behalf. If you would like to join via teleconference, contact Lynn Pointer to get the dialin number and pass code.

CLE Survey to TBA Criminal Justice Section Members

We would like to hear from you concerning what kind of CLE topics you would like this section to produce. Please take a few minutes to drop us a note and let us know what topics would be most beneficial to you.

I would like this section to present the following topics at future CLE programs:

Please email or fax your responses to:
Lynn C. Pointer
TBA Sections/Committees Coordinator
Fax (615) 297-8058
Lpointer@tnbar.org

Thank you!

PLEASE SEND YOUR SUGGESTIONS FOR WEB LINKS TO ADD TO THIS SECTION'S WEB PAGE, TO: Claudia Jack, District Public Defender, 22nd Judicial District, 809 S Main St Ste 200, PO Box 1735, Columbia, TN 38402. Phone: 931-380-2598 and Fax: 931-540-2451 or email her at: tdjack@djis.net

If you have questions or need information about TBA's Criminal Justice Section, you may contact: Lynn C. Pointer, Sections/Committees Coordinator, Tennessee Bar Association, 221 Fourth Avenue North. Suite 400, Nashville, TN 37219. Email: lpointer@tnbar.org
Phone: (615) 383-7421 and Fax: (615) 297-8058.